Gaius Publius: It’s Not About Gorsuch, It’s About the Democrats

By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. GP article archive  here. Originally published at DownWithTyranny

The largest political bloc in the United States, “radical independents” (discussion here; click to enlarge).<

 Update: Various news outlets are reporting that because Chris Coons now says he’ll support the filibuster, the Democrats have 41 votes and can block the nomination, at least until filibuster rules are changed. The Hill:

Sen. Chris Coons (D-Del.) announced on Monday that he will oppose President Trump’s pick on a procedural vote where he will need the support of eight Democrats to cross a 60-vote threshold to end debate on Gorsuch. Coons is the 41st Democrat to back the filibuster.

“Throughout this process, I have kept an open mind. … I have decided that I will not support Judge Grouch’s nomination in the Judiciary Committee meeting today,” Coons said.

“I am not ready to end debate on this issue. So I will be voting against cloture,” Coons said, absent a deal to avoid the nuclear option. [emphasis added]

The Hill adds, “Unless one of the 41 Democrats changes their vote, the filibuster of Gorsuch will be sustained in a vote later this week.” Note the qualification (bolded) next to the Coons quote. That’s the writer’s voice, but it reads like a paraphrase from Coons. From this, it seems likely they’re still negotiating to “preserve the filibuster,” as the Democrats might put it. We won’t know until the votes are cast how things actually do or did play out.

Bottom line first — Democrats are in luck. They now have a fourth opportunity to make a new first impression on voters — especially those in Rust Belt and economically suffering states — yet another opportunity to bring disaffected voters back into the fold in 2018 and 2020.

The first attempt was the nomination of Hillary Clinton in an obvious, 2008-style “change election” year, despite the fact that an actual “change” candidate, Bernie Sanders, was an option they could have chosen. Clinton ran as “Obama’s third term”; she won where Democrats and the economy were strongest — the coastal states of California and New York, for example — and she lost where Democrats used to be strong but the economy was terrible — Michigan and Wisconsin, for example, which she also lost in the primary to Bernie Sanders, a telling sign.

The second attempt was, in the aggregate, the numerous, terrible votes on the numerous, terrible Trump nominees — like torture-loving Mike Pompeo as director of the CIA, who passed the Senate 66-32-2; utterly unqualified Nikki Haley for UN Ambassador, who passed 96-4; anti-public school evangelist Betsy DeVos for Education Secretary, who passed her cloture vote 52-48 before being confirmed on a 50-50 vote; or perhaps most significantly, Exxon CEO Rex Tillerson for Secretary of State, who passed the Senate 56-43-1. Mark Warner and Angus King were among the Democrats voted for Tillerson; Chris Coons didn’t vote.

The third attempt was was the proxy battle between the Obama forces, who wanted their man, Tom Perez, to be named DNC chair ahead of Sanders-supporter Keith Ellison. Perez won, with Obama, among others, actively whipping for him (our write-up of that battle is here).

Now comes the highly pro-corporate, pro-religious-rights nominee Neil Gorsuch to fill the vacant Supreme Court justice seat. As you will read below, according to Mitch McConnell, he’s going to be nominated one way or the other — with the filibuster in place or with it removed.

The only real question is about the Democrats. What will they do — permit enough of their members to “preserve the filibuster” (until the next time Republicans threaten it) by voting the interests of their donors and passing Gorsuch with Democratic support, or show some Party spine in defeat?

And the only real issues at stake are the 2018 and 2020 elections. Will the Democratic Party, in the aggregate, begin to look like a party the largest voting bloc in the country — “radical” (pro-change) independents — can support? Or will they continue to look like the party of only the comfortably well off?

We’re about to find out.

The Gorsuch Nomination — All You Need to Know

As of the latest reports, on Friday, April 7, just prior to a two-week recess, the full Senate will take up the nomination of Neil Gorsuch for justice of the Supreme Court, filling the vacancy left by the death, more than a year ago, of Antonin Scalia on February 13, 2016. (As anyone following this story knows, then-President Barack Obama had shortly thereafter nominated Merrick Garland for the seat, but in an unprecedented move, the Senate under Mitch McConnell refused even to hold hearings, in a apparent — or obvious — attempt to hold the nomination for a potential Republican president after the November 2016 election.)

Because of the makeup of the current Senate — 52 Republicans, 46 Democrats, 2 Independents (Bernie Sanders and the “centrist” Angus King) — Republican have enough votes to confirm Gorsuch (51 votes needed), but not enough to break a filibuster on the vote to close debate and proceed to a vote to confirm (60 votes needed).

This means that the Republicans, if they vote as a bloc, need eight Democrats/Independents to vote with them to close debate (the so-called “cloture” vote).

What to watch for — The cloture vote will determine whether Gorsuch will be confirmed (unless, as noted below, the Republicans vote later to kill the filibuster rule for SC nominees). Thus, any Democrat who votes Yes on cloture but No on Gorsuch is a hypocrite — is merely pretending to be opposed after helping to settle the matter the other way.

That’s true of almost all Democrats when it comes to cloture votes, by the way. A vote to close debate, when a bill or nomination could be stopped, followed by a “principled” vote against a bill or nomination means the vote to oppose is a “show vote” only.

The Democratic “Deal” and the Democratic “Filibuster”

In response to the possibility of a Democratic filibuster of Gorsuch, McConnell has threatened a so-called “nuclear option” — that the Senate would change the rules if a filibuster succeeds in a way that would remove the 60-vote threshold for cloture votes on Supreme Court nomination.

Most recently, we find this:

President Donald Trump’s Supreme Court pick, Neil Gorsuch, will be confirmed this week one way or the other, Senate Majority Leader Mitch McConnell said on Sunday, suggesting he’ll trigger the so-called nuclear option if Democrats attempt to filibuster Gorsuch.

“Judge Gorsuch is going to be confirmed,” McConnell said on “Fox News Sunday.” “The way in which that occurs is in the hands of the Democratic minority.”

McConnell did not say directly that he would trigger the nuclear option, in which the chamber’s rules would be changed to allow the Senate to cut off filibusters on Supreme Court nominations with a simple majority, instead of the current 60-vote threshold. But he said the week “will end with [Gorsuch’s] confirmation” whether or not Democrats attempt to filibuster him.

Democrats say that if the filibuster remains in place, they have the votes to torpedo Gorsuch’s nomination.

“It’s highly, highly unlikely that he’ll get to 60,” Senate Minority Leader Chuck Schumer said on NBC’s “Meet the Press.”

As the Gorsuch nomination moved through the Republican-controlled Senate, news leaked that some Democratic senators were considering offering a deal to Republicans — “we’ll vote for Gorsuch if you don’t eliminate the filibuster for the next Supreme Court nominee.

Since first hearing about the threat to the filibuster, “some” Democrats were said to be considering a deal that would preserve the filibuster (until it was next threatened, it must be said) in exchange for Democratic votes for Gorsuch. The uproar among the public against that was immediate.

In apparent response, Senate Democratic leader Chuck Schumer promised a filibuster — meaning, he announced his own intention to vote no on Gorsuch, and he “asked” other Democrats to do the same. (Those details are here: “Senate Democrats Will Filibuster Gorsuch…Maybe“.)

The Decision for Democrats: Well-Paid Minority or “Party of the People”? 

Keep in mind these things:

  • The Democrats need millionaire, billionaire and corporate money to stay “in business,” since they’ve rejected Bernie Sanders’ fundraising model.
  • Big money and pro-corporate forces really really want a strong pro-corporate majority back on the Roberts Supreme Court.
  • Gorsuch will likely be confirmed regardless of what the Democrats do.
  • If Democrats help break the filibuster, Republicans will claim the confirmation was “bipartisan,” and corporate Democrats like Schumer can go into private donor meetings and claim his party helped “deliver.”

So what the Democratic Party vote on Gorsuch comes down to is a public show of support for one of two constituencies — either the public and their interests, or corporate and big money donors and their interests. The public is watching — which puts Democratic Party prospects at risk; and the donors are watching — which puts Democratic Party funding at risk.

Which leads straight into the Gorsuch vote on April 7. What will the Democrats do?

The Gorsuch Whip List

According to The Hill, here’s where we stand with Gorsuch.

▪ Three votes to break the filibuster and approve the nomination —Joe Donnelly (IN), Joe Manchin (WV), Heidi Heitkamp (ND). (Update: Michael Bennet will vote to end the filibuster.)

▪ 38 votes to block the nomination, including the surprising Claire McCaskill (MO), but perhaps not including Richard Blumenthal (see below). Most of these say they will also support the filibuster, but not all.

▪ Five votes “undecided” in the vote to approve the nomination — Michael Bennet (CO), Chris Coons (DE), Angus King (Maine), Jon Tester (VT), Mark Warner (VA). Tester was in Senate Democratic leadership; he’s the outgoing chair of the DSCC. Mark Warner is in leadership now and a Schumer ally. This may indicate how strongly (or weakly) Schumer is whipping against Gorsuch. Watch Bennet, Coons and King, for example.

CNN’s count adds Richard Blumenthal (CT) as undecided in approving Gorsuch and includes Ben Cardin (MD) and Patrick Leahy (VT) as undecided in supporting the filibuster. (Yes, Leahy, who was accommodating to so many Bush II lower court appointees.)

▪ Two votes “unclear” — Dianne Feinstein (CA), Bob Menendez(NJ). “Unclear” may mean “negotiating for favors” if the vote is close and one of the two sides can give them something they want. (CNN has Feinstein supporting the filibuster and also opposed to the nomination.)

If you’re counting, the three firm yes votes and the five, six or seven undecides alone could break the filibuster.

The Hill, of course, is maintaining the pretense that Democrats in red states can’t win without acting like Republicans. Note that Trump didwin in red states by not acting like a Republican. Trump won, if you’ve forgotten, by acting like … Bernie Sanders.

A New First Impression, or a Permanent, Well-Paid Minority?

Remember, if the Democrats don’t manage one of the days to make a new first impression on voters, they’ll be a permanent electoral minority, albeit very well paid for their efforts. “Permanent” means that their minority will last until one of these nearly inevitable events occur…

  • An economic revolt against the ruling elite far angrier than we saw in 2008 and 20016, or
  • A widespread, panicky recognition that we’re really really screwed on climate

…both of which will make the country nearly ungovernable and elections, frankly, moot.

And from an independent voter’s perspective, if Democrats don’t care if they are always in the minority, regardless of their words, why vote for them? It’s a vicious cycle, downwardly spiraling.

Will a successful cloture vote slow the flow of big-donor money to the Democratic Party? If not, they can filibuster freely, knowing nomination is secure in any case.

Or will a failure to block the nomination be enough to show both the donors and the public that Democratic Party hearts are “in the right place” after all — even if those two “right places” are simultaneously opposite to each other?

What will Democrats do? I can’t wait to find out.

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  1. Benedict@Large

    So in other words, the Democrats have gotten themselves into another “chump vote”, which is exactly where they feel most comfortable. They get to make it look like they are voting against Gorsuch, all the while knowing their votes count for squawk.

    It has seemed to me for all the many years of the “Clinton shift” that this was the Nirvana they were always aiming at. They now get to talk left with no fear that the votes will ever go left. The slave states at last have won.

    1. NotTimothyGeithner

      “The slave states at last have won.”

      Besides Bill’s obvious sins such as warehousing, Bill turned the son of the Senator, who broke the Solid South with his pro civil rights positions, into his VP.

      Upper class whites supported the confederacy and worried about European sensibilities at the expense of pragmatism, but I’m sure their black servants loved them. Poor, rural whites were derided as lazy for not supporting the Confederate cause, often deserting. West Virginia is routinely derided for betraying the Clintons. Gee, WV didn’t support what cause? A hallmark of poor, rural whites in the South was distrust for slave owners and near slave owners with their faux-Euro styles and manners. Those upper classes then lamented how poor whites would betray them.

      The Russians threatened war if the British and French supported the Confederacy. Who is public enemy number one?

      Rationally, Bill Clinton is clearly a neo- confederate who found a way to ally with northern finance signified by his marriage to a patrician type with the name of Rodham which although rare is a patrician, English name. Bill’s name is self explanatory.

    2. steelhead23

      It has long appeared to me that the U.S. Congress, both sides of the aisle, has largely abdicated its authorities in an effort to avoid blame. It’s a time-honored tradition to be chumps. Were I a betting man, I’d bet on cloture. Surprise me, Chuck.

  2. UserFriendly

    Why do people always demand purity test votes on the stupidest things? The court doesn’t change with Gorsuch replacing Scalia. Blow up the Filibuster in this pointless show of solidarity and when RBG dies or Kennedy retires and dems can do nothing but sit on their hands as the court moves hard right for the next 20 years I am going to scream the most unsatisfying I TOLD YOU SO.

    Say good by to Single Payer because you know a hard right court will find a way to shoot it down. Say good bye to free college or debt forgiveness because we will have a reactionary majority for the next 20 years thanks to your pointless need to feel like you are #resisting.

      1. UserFriendly

        No shit they can, that doesn’t mean it will be as politically easy for them to do then as it will be now. There are some republicans that don’t want to nuke it, but they will to make sure the court doesn’t go further left. They would have a hard time justifying that vote to make the court hard right. Are you people completely incapable of considering any perspective besides your own?

        1. SpringTexan

          “Pale Ebenezer thought it wrong to fight,
          But Roaring Bill (who killed him) thought it right.”

        2. Adamski

          They do not care about only bagging one more seat. They will not hesitate to get Gorsuch now and the replacement for RBG or whoever later. Why get a tie when they can get a majority. And then a bigger majority. Who the hell will they need the need to “justify” it to?! The electorate?

          Bush didn’t go for any of this ‘norms’ business to try and earn the tolerance of the elite like the Dems do. Indeed the GOP were prepared to have a big propaganda campaign if they won the popular vote but lost the electoral college in 2000 to try and get faithless electors. Why would anyone still be surprised by their greed and ruthlessness?

          1. UserFriendly

            Congratulations on your singular view of all GOP senators as totally ruthless ideologues who all have the same thought process. Does it hurt your brain when Rand Paul and McCain go at each other? Is it really too hard to think that maybe their might be something to them besides being on team slightly more evil?

            Since I’m tired of saying the same thing in different ways this is copied from another response I just typed below.

            I’m saying that their are a handful of GOP Senators that cherish the senate as an institution. They aren’t complete partisan hacks who would do anything for a slight advantage. They see Gorsuch replacing Scalia as maintaining the balance of the court and they are not willing to let dems filibuster every single nominee Trump puts forward, They see this open seat as something that was just decided in the election.

            What would be your ideal scenario if dems manage to filibuster him? How do you expect that to play out in any way that is realistic that would benefit you at all? Say they don’t nuke, do you expect Trump who campaigned on nominating someone hard right to replace Scalia to just go, oh, ok I’ll nominate a centrist? Do you expect the seat to stay open for 5 years? What is your Ideal outcome?

            I think that some GOP Senators would be less likely to nuke if it was seen as a way to get a hard right court. Especially after the game they just pulled with Garland. They think that would make them look extremely partisan and not keeping in the grand tradition of the Senate.

            But if you insist on making them blow up the filibuster now on what is a done deal they will not be voting down anyone Trump nominates.

            Does that mean they definitely won’t nuke next time? No. but there is a chance unlike now.

            1. Cujo359

              When the GOP only had 41 Senators, all the way back in 2008-2010, they managed an unprecedented number of filibusters. Yes, on these issues they have the same brain, which is that when their party leadership demands they do something, they do, or consequences result.

              1. UserFriendly

                That was pre dem’s nuking on all but the supreme court. comparing apples and oranges.

            2. OldBlueCat

              Paul and McCain (and Lindsey Graham too) always get back into line after a lot of sound and fury, but whatever

            3. Bryan

              It’s an interesting speculation, but there isn’t much evidence for it, only your contention about how cherished the Senate is to a few R senators. But tactically it may make sense to hold off until the next for invoking the filibuster, for the “hard right” reason you mention. But holding off comes at the cost of the Dems further inflaming their left flank. No way around that. They’ve lost the presumption of good faith.

      2. Procopius

        Hey, they can nuke the filibuster any time the Democrats try to use it. I don’t understand why some Dems think preserving it is an argument. If you have a tool which you can’t use because it will (probably) break the first time you use it, what good is it? You might as well break it putting on a good show.

        1. sharonsj

          And if they don’t use it, their base will continue to abandon the party. The only reason I remained a registered Dem was to vote in the primaries, but considering the shitty candidates, I’m asking myself “Why bother?”

    1. voteforno6

      So, what good is the filibuster if the Democrats are the only ones that respect it? The Republicans changed the rules by requiring 60 votes for everything in the Senate while Obama was President. That’s no way to govern. Clearly, something has to change. If the Republicans nuke the filibuster, who cares? If they get everything they want just by threatening to nuke it every time, then it’s good as dead anyway. All it does now is constrain the Democrats. We might as well just shoot the hostage, and get it over with. Besides, there’s always the possibility that the Democrats could get back in the majority.

      And, if the Supreme Court takes a hard right bent, then so what? Despite what people may believe, the Court is not some all-powerful institution. It’s legitimacy rests only on what the other branches grant to it. The Court does not have the power to enact legislation (that’s Congress). The Court does not have an army to enforce it’s laws (that’s the Executive). Despite what many may think, the Court is not immune from public pressure. If the Court does in fact move too far from the mainstream of public opinion, it will learn very quickly just what limits there are on its power.

      1. CRS

        If the Court does in fact move too far from the mainstream of public opinion, it will learn very quickly just what limits there are on its power.

        What limits are you talking about? Constitutional amendments?

          1. Adamski

            It is not in the interest of any side for the Court to be ignored completely. Then nobody knows what is allowed.

      2. UserFriendly

        Remind me never to let you negotiate for anything. Take a win when you can, take a lose when you have to and live again to fight another day. firing all your ammo when you are guaranteed to lose is just plain stupid.

        There is absolutely no chance democrats take the senate in 2018 They need too keep all 10 seats in states Trump won plus gain 3 and there are only 2 that are plausible (NV and AZ). After that they would need to beat a senator who won by more than 15% last time in TX, NE, MS, or AL (open seat) or who won by 20%+ in UT, TN, or WY. Knocking off Cruze in TX( who is currently the most popular politician in that state) is the best shot.

        1. voteforno6

          So, capitulate every time? The net effect is the same – the Republicans get what they want. Either the Republicans are serious about doing away with the filibuster, or they aren’t. At some point, the Democrats should force them to show their cards, or they are going to give in every time the Republicans make noise about it. When should the Democrats use the filibuster? What is that future event that is so much more important than a Supreme Court nomination, that the Democrats should save their ammo? I’m really curious, since the Democrats already eliminated the filibuster for every other nomination short of the Supreme Court, there’s not a whole lot else for them to fight. If there’s something else that’s so important that the Democrats are willing to use the filibuster, then it’s a pretty fair bet that the Republicans would consider it to be just as important, which would make it just that much more likely to do away with the filibuster.

          Now, I may not be a master negotiator like you, since I don’t see the wisdom in always capitulating, but even I know that bluff and bluster only carries you so far. At some point, you have to find out just how strong your position is.

            1. voteforno6

              So, you’re claiming that the Republicans would be less willing to blow up the filibuster, when the stakes are higher? If the Republicans are this willing to nuke it on this nomination, wouldn’t they be more willing to do so in that future instance?

              1. UserFriendly

                I’m saying that their are a handful of GOP Senators that cherish the senate as an institution. They aren’t complete partisan hacks who would do anything for a slight advantage. They see Gorsuch replacing Scalia as maintaining the balance of the court and they are not willing to let dems filibuster every single nominee Trump puts forward, They see this open seat as something that was just decided in the election.

                What would be your ideal scenario if dems manage to filibuster him? How do you expect that to play out in any way that is realistic that would benefit you at all? Say they don’t nuke, do you expect Trump who campaigned on nominating someone hard right to replace Scalia to just go, oh, ok I’ll nominate a centrist? Do you expect the seat to stay open for 5 years? What is your Ideal outcome?

                I think that some GOP Senators would be less likely to nuke if it was seen as a way to get a hard right court. Especially after the game they just pulled with Garland. They think that would make them look extremely partisan and not keeping in the grand tradition of the Senate.

                But if you insist on making them blow up the filibuster now on what is a done deal they will not be voting down anyone Trump nominates.

              2. NotTimothyGeithner

                I’m not sure the stakes aren’t higher for the GOP.

                Republicans usually can rely on enough Dems to avoid the filibuster, but the Dems really went overboard with excuses over the last eight years. Voters are expecting Dems to behave. Bennett has disappeared since introducing Gorsuch. For many Democratic marks, they now want to know why the Dems can’t use the strategies the Republicans used. The Dems never envisioned losing the White House without an official party realignment. The elites were united, so there was nothing to worry about.

                Getting back to the GOP, they’ve lost on the Healthcare repeal. They can’t really offer tax relief to their voters. Good government is already operating on a shoe string. Defense spending is under public scrutiny especially with the F35’s foibles. They can’t rely on Dems providing cover for the Freedom Caucus types anymore. Most of those Dems have lost in recent years. Infrastructure should have been done out of the gate. This was bungled because they didn’t want to help in any fashion, so it’s likely dead. Gorsuch is a win before they have to deliver a budget. Between Trump and Ryan, Congressmen will have to do work or risk being cut out.

                1. Procopius


                  They can’t rely on Dems providing cover for the Freedom Caucus types anymore

                  The last eight years looked to me like the Tea Party/Freedom Caucus saved us from the Dems selling Social Security out. Twice.

          1. Adamski

            Who said anything about nuking the filibuster on anything else i.e. legislation? The context here is to nuke it for Supreme Court appointments.

        2. Freda Miller

          Re: Ted Cruz in Texas. He may have won by a large margin last election. Don’t look now, but Beto O’Rourke, a Democrat congressman from El Paso, is running against him. It could be an interesting race.

      3. DJG

        voteforno6: Thanks for that second paragraph. What well-meaning liberals who are afraid of political maneuvering seem to rely on an idea that the Supreme Court of the United States has protected civil rights and civil liberties. It hasn’t. This is the court that brought you Plessy v Ferguson, among other horrifying decisions. And Plessy was just the court’s way of wrecking the Reconstruction. The Supreme Court is a weak reed indeed.

        1. voteforno6

          The Court has had good and bad moments. It is also the branch of government that is least likely to go off the rails, since it has the least ability to enforce its dictates, compared to Congress and the President. The Supreme Court is not immune to public pressure. For it to make a decision that is broadly and deeply unpopular would only diminish the Court’s stature, and its power. That Plessy was the law of the land says a lot of the state of society in the 1890s, and how much it had changed by the 1950s.

      4. Carolinian

        Agreed. This is all Kabuki theater, the Dems favorite form of entertainment. Their chance to avoid Gorsuch was by not nominating Hillary Clinton to run for president. While the above article suggests there is some sort of broad public outcry against Gorsuch it offers no evidence of that. If the Dems go to the mat and lose it will be yet another futile gesture that makes them look weak. Of course they do have the press, now in full bore opposition mode, to spin it their way.

        None of which is to say Senators shouldn’t vote their conscience. Still I wonder if we would see Schumer’s move if the president was anyone other than Trump. Where was the great stand on principle when Roberts and the others were installed?

        1. Adamski

          Not going to the mat over this makes them look like they don’t mind Gorsuch’s opinions anyway, which looks weak too. I thought Gaius Publius covered the angles pretty thoroughly here.

          1. NotTimothyGeithner

            Admittedly, they have no real, legislative power. I don’t know how many Democrats believe the filibuster is anything other than a temporary rule that can be changed by a simple majority or ignored because the Constitutional threshold is 50+VP.

            The correct strategy that would or is to make Gorsuch radioactive and win an up and down vote. Trump is unpopular enough to threaten the likes of Collins long term. Winning this vote is possible. The Democrats have created a situation where the have to hang themselves on the filibuster a day whining about tradition.

            The other problem is the Democrats who know what the filibuster is pretended Democrats were foiled by Republicans and arcane legislative tactics for so long they have way too many voters who believe “Mr Smith goes to Washington” is something other than sentimental drivel. If they go home and say, “hey, that filibuster is a lie but here’s what we need to do, there will be many angry Democrats who bought that 60 votes garbage.”

            I should add the Democrats authorized a rule for a 60 vote filibuster in 2007, 2009, 2011, and 2013. A simple majority disappeared the filibuster when it suited them in 2014.

        2. manymusings

          This “debate” is making my head explode. Everyone agrees it doesn’t matter what the dems do — fillibuster, don’t fillibuster, either way the Rs won’t hesitate to threaten the nuclear option (and actually use it) any old time they want, and certainly will do so for another SCOTUS vacancy. That being the case, it’s silly to call either position on the fillibuster silly. What’s silly is pretending it matters either way. The simple fact is it just doesn’t make any practical or tactical difference (at least no difference that reasonably can be predicted or gamed out).

          What this seems to boil down to is each side finding it irritating that the other side thinks its plan might “work” or matter. Those who advocate coughing up the votes are irritated by the notion of dems getting on their high-horse over taking a cost-free, symbolic stand, which is the only kind dems take. Those pushing fillibuster are irritated by the familiar Reasonable Adult lecturing about “being smart” and “living to fight another day” which is the same lecture we’ve gotten for two decades to justify own-goals and pre-emptive capitulation.

          Frankly it’s all irritating. But they gotta do something (or not, which is also something). So when tactics literally don’t matter, might as well vote one’s conscious. What I really wish is that they’d spare us the grandiose Resistance blather. Pretending like what they do in this situation is of any consequence is merely to feign relevance and distract from the fact that they are in this situation because of complete and utter political malpractice.

          And by the way — what on earth does it mean to say that SCOTUS can’t “enforce” its decisions? Like when SCOTUS picked our President and that wasn’t enforced? Or codified corporate “personhood” and that’s not enforced? Or crippled medicaid expansion under the ACA and that’s not enforced? Or gave us Citizens United and that’s not enforced? SCOTUS decisions are “enforced” the same way any law is enforced. And public opinion on decisions or the Court’s legitimacy doesn’t really seem to matter all that much — and certainly doesn’t seem to affect “enforcement.” It’s bad for the state of our democracy (but even in that regard, I wonder if “enforcement” tends to get stronger in parallel with a weakening democracy until the breaking point — but is that the argument here, that we truly are at or near a breaking point?). Republican voters have long understood this far better than the rest of us. It’s precisely because they *don’t* believe in the validity of everything handed down by SCOTUS that they fight for it so hard.

          1. manymusings

            I don’t think I replied correctly. Supposed to be more of a general reply, not specifically to Adamski at 10:27…

          2. UserFriendly

            . Everyone agrees it doesn’t matter what the dems do — fillibuster, don’t fillibuster, either way the Rs won’t hesitate to threaten the nuclear option (and actually use it) any old time they want, and certainly will do so for another SCOTUS vacancy.

            That is the exact opposite of what I’m saying. That is exactly what the #resist no matter the consequences crowd is saying. (voteforno6 and Adamski)

            I’m saying that the GOP will definitely nuke now if they have to. There is a decent chance that they won’t for the next vacancy. Of course my position doesn’t come with any virtue signaling so it is much less popular.

            They want to make them nuke now so that they have no shot of opposing the 2nd vacancy. I think that is stupid especially since there are several GOP senators who have a romanticized idea of the senate as the world’s most deliberative body and they do not want to tarnish that by nuking. However, they are in a bad spot right now, Trump promised to fill Scalia’s seat with a hard right conservative. They saw the election results as vindicating that choice. They will nuke now if they have to. It would not change the ideological makeup of the court to replace scalia with Gorsuch.

            If another seat opens up it would be a huge shift right for the court. They know full well that it was a slimy move to refuse to vote on Garland. They don’t need to be the best people in the world to see how nuking the filibuster to replace RBG with Scalia 2.0 would destroy any chance of bipartisanship in the senate. It would also make the Senate look like a sad partisan piece of crap. They would have a lot harder of a time nuking the filibuster then.

            Of course that would involve taking a dispassionate look at the facts and not thinking of senators as pure evil willing to do anything to screw people over. I assume they are the same kind of people who agree with calling Trump voters deplorable because they are completely incapable of viewing things from perspectives that are not their own.

            Really their argument comes down to ‘we will feel morally superior for a little bit if the feckless dems stop being feckless’ at the absolute worst possible time. Is my idea guaranteed to work? No but at least the odds are above 0 unlike their plan which is make a big show of giving up any say in future SCOTUS appointments for absolutely no reason.

            1. pretzelattack

              no this is just a kabuki show; if the dems don’t make the repubs use the nuclear option, ever, the repubs simply still keep threatening to do so, and the dems in the name of saving a procedural rule in the senate will happily capitulate once more. your argument is just the old losing “dems should keep their powder dry” rationale for dems rolling over.

        3. oh

          Exactly! The gang of 14 they put up as a smokescreen to avoid the nuke option was an earlier Kabuki play.

  3. screen screamer

    I must admit my favorite question to Gorsuch came from Mazie Hirono when she asked him about his favoritism towards corporations. Coming from a person who is from one of the private entities that make up our political system. I laughed so hard I almost wrecked my vehicle.

    1. Vatch

      Please pardon my ignorance, but I don’t know enough about Hawaiian politics or Sen. Hirono to understand your point. Could you please provide some additional details?

      1. screen screamer

        I could be wrong, but aren’t the two parties incorporated? The DNC and RNC? I had thought that they were. Maybe they aren’t.
        They are. A quick search and this is what ended up on my screen. One is the list of officers and such for the RNC INC. The other is a court case in which Bernie 2016 INC sued the DNC INC for use of voter registry information during the campaign. In other words, Hirono, a D INC member is accusing Gorsuch of being a hack for corporations. I don’t know why this struck me as being hilarious, but it is. Of course this does not mean that the gentleman who left his cargo before he froze to death and was fired was wrong. One could make the assumption that with being a philosophical sort, Gorsuch would have heard of John Locke and his seminal work on the Natural Law and Letter of Tolerance. Maybe he didn’t. He did matriculate at Oxford and maybe they just never covered his view point. But I digress. Hirono=hilarious.

        1. Vatch

          Okay, I see your point. Perhaps one could distinguish between non-profit corporations and for-profit corporations, and criticize Gorsuch for being such a staunch advocate for profit making corporations against natural humans.

  4. MoiAussie

    I sympathise with your fears about what the reactionary majority may bring, but consider.
    – There is no guarantee that the filibuster will ever be available when needed.
    – You’re condemned for the next 20 years only if business continues as usual. The worse it gets now, the less likely is that outcome.
    Tear down everything that’s evil and broken, and replace with something better. Think of it as long-overdue infrastructure maintenance on the political system.

      1. Adamski

        — Agree that any time the GOP controls the Senate they’ll be ready to nuke the filibuster to get their court pick. It’s symbolic this time and next time. UserFriendly didn’t read the article
        — I don’t agree with the “heighten the contradictions” thing. I think it’s important to prevent things getting worse. That would mean more and more things can go wrong before we get back on the right track.

        1. MoiAussie

          I’d argue that until things get much worse, there’s almost no chance of a majority of ordinary US citizens putting aside their considerable differences and uniting and acting to bring about real change.

          1. Art Eclectic

            Another 4 years of no jobs in the opioid belt, no infrastructure package, nothing done towards single payer, and declining air/food/water quality should be about right.

            But Trump voters will get that Yuuugge tax cut on the 1% they wanted.

            1. pretzelattack

              yes, whether clinton won or trump won, those things happen. it was important to block clinton, it is important to block trump now.

        2. hunkerdown

          Doesn’t mean this government has to have anything to do with it. See also Occupy Sandy.

        3. UserFriendly

          I read the damn article, I also have the mental capacity to understand that GOP senators come in flavors of evil. Susan Collins being not all that evil and ted cruz being about as evil as they come. Some of the old timer neocons who probably voted for Hillary like McCain and Graham still like to think of the senate as the worlds most deliberative body and aren’t super eager to toss that legacy for a hard right court. Merkosky also wouldn’t be thrilled to nuke along with a handful of others that I can think of. Right now their base is up in arms about making sure the court doesn’t take a left turn with Scalia dieing. They have no case to make for not nuking. If Kennedy retires or RBG dies then they have a case to make about not destroying the senate. But it’s just so much easier to assume they are all evil rather than people you disagree with.

          1. Kurtismayfield

            Susan Collins is allowed to vote the way she does when it is convenient. For example the Devos vote, where she voted FOR advancing the nomination to the Senate floor, but AGAINST when it was on the floor. Saying that she is “better” or “worse” than her colleagues is a matter of framing. If her vote was truly necessary then she would vote party line.

            And the whole “Good vs evil” crap is meaningless when 99% of your colleagues are corrupt

            1. UserFriendly

              Yeah, like when Collins and Murkowski voted against their party to end don’t ask don’t tell? Just barely breaking the filibuster.

              At no point did I say any of them weren’t evil. I said different flavors of evil. Hell, even Cruze voted for buying drugs from Canada.

              1. Kurtismayfield

                DADT repeal was 65-31, but you are correct Collins was instrumental in getting it passed.

                Sadly Collins is more socially liberal than Bill Clinton, but that at least is consistent with traditional New England Republican voting patterns.

                  1. NotTimothyGeithner

                    Collins could have left with Jeffords. She chose to stay with he GOP, the Klansman and Cheney.

                    She’s a disgrace. Occasionally, she proves embarrassing enough the centrists in Maine come under the microscope and has to act.

          2. Adamski

            It isn’t about whether their views should be considered evil or whether we should disagree. It’s legitimate (it’s within the rules) to nuke the filibuster as when Dems did it for appointments. It’s a question of whether they are determined enough to want to maximise their Supreme Ct seats while they have Trump in the White House. I suggest they are, regardless of what one thinks about their ideology, degree-of-evil, etc

  5. Ulysses

    “The whole “Good vs evil” crap is meaningless when 99% of your colleagues are corrupt”


    There’s a good reason that by far the largest bloc of registered voters call themselves “independent.” Millions of Americans are smart enough to recognize a “good-cop/bad-cop” scam when they see one. This corrupt duopoly isn’t worth saving!

    Even relatively decent individuals, who work in this corrupt system, are powerless to do anything that remotely inconveniences our corporate overlords, like Goldman Sachs, or Exxon-Mobil. At best they can toss a few symbolic crumbs to the deplorable masses to “keep hope alive.”

    1. screen screamer

      Here you go. A friendly description of Paternalistic Libertarianism. Sunstien and Thaler introduce us into ways that give us choices as provided by our patricians because they know better than do we in which choices to make. Or if you want go to youtube and listen to these people yourself. Just a happy bunch.

    1. polecat

      To hell with Whigs ! … I’m gonna vote in the ZARDOZ Party, giant heads and all that comes with it …

      Anyone know of an up-an-coming manly hunk politico, with chest hair, and wearing numerous bandoleers ??

  6. John Wright

    Why don’t the Democrats run a “real” filibuster and shut down legislation by reading from “War and Peace” and “Tale of Two Cities” for 24/7 to stop all other Senate activity?

    Even “Atlas Shrugged” could be read to appease the Ayn Randians in the Senate.

    This could well be more valuable to the citizenry than business as usual.

    This would have a real cost for the Republicans as nothing else would happen in the Senate.

    The current filibuster style simply sidelines the considered action while the rest of the influence peddling legislation continues unabated..

    Let’s have a “real” filibuster, one that will gridlock government, not a weak-tea version that is always “preserved for future use” but is mainly used for grandstanding purposes..

    1. MartyH

      I vote for **Atlas Shrugged** followed by **The Hitchhiker’s Guide to the Universe** (the series) and the works of Marcel Proust (in French). If they are going to try to actually stop the vote, cloture is merely pulling the trigger playing russian roulette with a fully loaded revolver … which says they want the cloture rule gone as much as the Republicans but they want to be able to claim that “the Republicans did it”.

    2. fosforos

      It is important to know the difference between a real filibuster–continuous unending debate–and the unconstitutional pseudo-filibuster of 60 votes being needed to *start* debate. That they only ever envisage that unconstitutional pseudo-filibuster proves their craven corruption. That the media and their deluded victims even use the word “filibuster” to denote the unconstitutional sixty-votes-to-start-debate “rule” proves only their ignorance. And by the way, if there were (per impossibile) a real filibuster no irrelevencies would be needed. Constituent denunciations of Gorsuch would be quite sufficient Senatorial listening materiel to last the rest of Trumpe-l’oeil’s pervidency.

  7. PaintersDrunk

    It is not about Democrats or Republicans.

    Even Mitch McConnell says that

    “I can’t imagine that a Republican majority in the United States Senate would want to confirm, in a lame-duck session, a nominee opposed by the National Rifle Association,” he told “Fox News Sunday.”

    This seat on the court has been presold as is often the case and the real question for those who might oppose the nomination is whether or not they care to buck the NRA.

    The ordinary person who relies on the long dead rule of law was kicked to the curb long ago or committed for insanity.

  8. Keith Howard

    It has always seemed to me that any dust-up concerning the “filibuster” is actually a contrivance for painting in patriotic colors the desire of every little princeling of the Senate to maximize her/his personal importance. It’s about them, not about anything else. Sans filibuster, members of the club will have one fewer highly visible type of opportunity to command the spotlight and slurp up the gravy. A tragic loss to the nation, no doubt.

    1. Adamski

      While I’m sure individuality comes into it, it is surely also a party interest thing. Neither side can get everything they want, never mind 1 senator being able to filibuster. Still think GOP ideology will make them willing to nuke in future though.

  9. leftover

    If the Democratic Party wants to reconnect with disaffected voters, it needs to take up the mantle of Single Payer, which represents the not only the universal healthcare most voters want, (and the labor sector desperately needs), but a return to progressive taxation, (pdf). That, of course, would require a little more effort and significant risk of offending corporate and neoliberal benefactors which, obviously, can be easily avoided through token resistance in a meaningless battle.

    Senate Democrats don’t have the power to stop a conservative from filling Scalia’s seat. They do, however, have the ability to preserve the power of the filibuster to aid in securing liberal/centrist representation on the Supreme Court in the near future. Scalia’s seat is not important. It’s Ruthie’s and Kennedy’s seats that need to be protected from ultraconservative jurists. Senate Democrats will need the filibuster to do that, even if they regain control of that chamber in the 2018 midterms.

    1. Cujo359

      The Democrats have the power to use the tools at their disposal to stop bad things from happening in the Senate via filibuster. The Republicans used that tool ad nauseum when they were in the minority (2006 thru 2014). The Democrats almost never use it, which, as the author wrote, has nothing to do with their desire to preserve a Senate institution, and everything to do with their own desire to keep the donor money flowing.

      If the GOP goes with the nuclear option, then that move is on them. The Democrats will have used the power they have available, which is what principled politicians ought to do. There’s no point in “preserving” a right by never using it.

      1. UserFriendly

        No one is saying never use the filibuster, we are saying grow a brain and use it when you have a shot in hell of it working.

        1. Cujo359

          No, you’re saying never use it, because as long as the Vice President is in the same party as the majority, they can use the “nuclear option”. That will be true this entire session, barring the loss of three Republican Senators. They can also change the rules at the beginning of a session by majority vote.

          1. pretzelattack

            ++++++etc. “keeping the powder dry” in practice seems to work out to never using the powder, at least when it comes to democrats.

      2. leftover

        Senate Democrats used the nuclear option during the Obama Administration to end Republican filibustering on Obama’s lower court appointees and executive appointments.

        Senate Democrats, The Gang of 14, used their power to effectively shut down the Senate during GW’s Administration to negotiate a compromise that ended Republican plans for the nuclear option.

        Senate Democrats today, even if they successfully block the Gorsuch nomination, cannot keep a conservative…a Trump camp conservative…out of Scalia’s seat. They cannot alter the existing ideological balance of the Supreme Court.

        If Senate Democrats force McConnell to change the rules for the sake of nothing more than political theater, knowing how unreliable neoliberal Democrats can be when it comes to the Party Line, the power to protect any ideological balance on the Supreme Court could be lost for decades…possibly a generation.

        What’s more important? A minor victory Democrats could tout as vengeance in an attempt to lure disaffected voters back into the same old Democratic Party? Or working proactively to secure, at least, the possibility of liberal/moderate/progressive representation on the Supreme Court in the future?

        The real battle for balance in the Supreme Court will be the 2018 midterms. And if Democrats can somehow regain control of the Senate, with no supermajority to exploit to obstruct future Trump nominees? Liberal/moderate/progressive voices on the Supreme Court could wind up being limited to just two seats. And a wing and a prayer.

        1. Cujo359

          The chances of a progressive being nominated to the Supreme Court in the next two years are precisely zero, if the Democrats do not, or cannot, make them do it. There is no deal to be made, no “later” that will somehow count more.

          1. leftover

            If Democrats can regain control of the Senate in 2018 that might…possibly…force the Republicans to consider more centrist, less political animals to fill High Court vacancies. It’s a long shot, for sure. But I think it has a better chance than political theater. If they relinquish the ability to filibuster over this nomination, they’ve screwed the pooch for sure.

            1. Cujo359

              The point you’re missing is that what you call “political theater” is an expression of what the Democrats stand for. If they let this nomination go by, after it was blocked for a year by the GOP, then what they stand for is nothing. Not using a tool at your disposal means it is already not at your disposal.

              The GOP hasn’t hesitated to use every means at its disposal to express its agenda. The Democrats have yet to do the same, and all the folks making excuses for them isn’t going to change that. If you think that the Dems can manage to win the uphill battle [1] of winning the Senate without showing they stand for something, then I really don’t think you have any idea why people turn out to vote, or decide not to, in an off-year election.

              [1] By Wikipedia’s count, Democrats will be defending 23 seats vs. 9 for GOP. Those are some long odds, since Dems would have to pick up 3 seats, and hope they can keep the independents, to win a majority.

  10. Deloss Brown

    Surprise! The filibuster is on! And I’m not sure that the Republicans can come up with anything worse in the future than they’re doing now. They will, of course, try.

    I’m re-reading the wonderful THE KINGS DEPART (Richard M. Watt) and I take the liberty of quoting his quote of Rosa Luxemburg:

    The imperialist capitalist class, as the last offspring of the caste of exploiters, surpasses all its predessors as far as brutality, open cynicism, and rascality are concerned.

    It will defend its “holy of holies,” its profits and privileges of exploitation tooth and nail . . . It will sooner turn the country into a smoking heap of ruins than relinquish its power to exploit the working class.

    And by all signs, she’s right, by golly!

    1. PhilM

      Good old Julius Caesar, who ravaged Gaul for a decade, brought it to its knees, slaughtered its fighters or took them as slaves to Rome, and left it a province to be plundered by Roman tax-farmers for the next four hundred years, feels somewhat slighted by Rosa’s rhetoric.

      As does just about everyone else in the set of “predecessors” to the imperialist capitalist class, whose members, enlightened by comparison, are the roses on the imperialist dung-heap.

      Quoting Rosa Luxemburg on social justice and politics is like quoting Torquemada on the Spanish Jewry. It’s entertaining if you are a blind fanatic, but it does not press hard on the scales of cogency.

  11. Lynne

    Oh, please. The Democrats are going to filibuster because instead of Obama’s pro-establishment pro-corporate nominee, they are voting on Trump’s pro-corporate nominee. The primary differences between the two are that Obama’s nominee ensconced himself into the East Coast establishment ASAP and never left–just like all his Ivy League admin. Gorsuch at least lives outside Washington and has ruled several times for tribes and natives, including the ruling reviving claims against the Feds for looting trust funds. Democrats opposing Gorsuch are really reacting against the idea that anyone not entirely the captive of the strip between DC and Boston might be competent and “allowed” to matter. Keep in mind that Sotomayor as well as Scalia publicly criticized the stranglehold the Ivy League has on the court–as well as the complete lack of a Justice who is neither Catholic nor Jewish. Changing that is what the establishment cannot abide.

  12. Cujo359

    Assuming the big donor money really wants Gorsuch to be confirmed, I don’t see how the Democrats will sustain a filibuster. Their whole reason for being these days is to keep the money flowing. They’ve already clearly shown they don’t care about respect from the voters, because the voters have nowhere else to go.

    As with many things the donor class wants, the only way to know is through the result of congressional votes, so I guess we’ll have to make assumptions based on the vote. It would be really nice if we could have a roll call of the donors, wouldn’t it?

  13. OldBlueCat

    Since our system of government requires two parties, neither party is really incentivized to do anything more than cash their checks as the Washington Generals to the majority party. Some individuals may occasionally try to take their jobs seriously, but given the high price of elections these days, it’s enough to please the donors and jive the rest

  14. Old Jake

    I see a lot of (what I believe is) pointless discussion on whether the Democrats should be preserving the filibuster, whether or not there are good or evil Rs (forgetting Ds) and a lot of other fluff having little bearing on what I saw as the core argument of the article, which is that the Dems have one more fleeting chance to show they have an interest in bringing the largest group of voters into the fold.

    I see his main point as the the few short sentences at the end, that continuing BAU is going to have consequences too. And perhaps these discussions shy from this point because we are all leery about the “what comes next” question. He predicts the deluge. Perhaps in a follow-up he’ll elaborate on what ungovernable looks like. While this may be unpredictable at the detail level, humans do tend to repeat behaviors.

  15. bezoff

    Why are we, after all the “wonderful clarification” we’ve received in the last year or so, continuing to leave lights on for the Democrats or drawing lines in the sand with baited breath?

    Bottom line is the D’s don’t have a pot to piss in politically. This is what losing looks like. Symbolic victories are not what the voters are longing for from their “representatives” in Congress!

    If I wanted narrative-driven horse race coverage, I’d turn to the MSM.

    1. pretzelattack

      we’re looking for some reason to believe the democrats want to win. if they don’t, no reason to vote for them.

      1. bezoff

        So, the Democrats haven’t already given us every indication possible they aren’t serious when they “fight”?

        I have yet to read a serious argument as to how the SCOTUS confirmation process will find its way into the voting booth en masse in ’18 or ’20. Average people don’t concern themselves with political preening over a fait accompli.

  16. robnume

    This “nuclear option” crap is all bread and circuses. CONgress seems to be chock full of drama majors who are playing at being representatives of “democracy.” There is no end to the hypocrisy and downright cruelty visited upon the American people vis a vis this “branch of government.” All and sundry in CONgress want a super-majority of neocon jurists to keep the deeply flawed and politically inclined Supremes as “Keepers of the Flame.” It’s “the best possible of all worlds.”

  17. Expat

    The Republicans did nothing but obstruct Obama and attempt to obstruct Clinton at every turn. They even had this as an open policy! Now that the Democrats dare try similar tactics, the Republicans are very high and mighty about democratic principles and process. Mitch McConnell’s extremely weak attempts to justify Republican strategy is painful to watch. He refuses to admit that the Republicans blocked Obama nominations; claiming that nominations in the final year of a presidency are traditionally not done. The same asshole who raled against Democrats when they said it.

    So now Democrats get to act like petulant children as well as finally show some backbone. But it’s a sad, very sad, that this is pleasing to Democrats or that Republicans even need to pretend that they are above this sort of partisan game!

    It’s not a partisan problem. It’s a human problem. The humans we have sent to Congress for life-long tenure don’t give a rat’s ass about anything but themselves. You want to end these bullshit games on Capitol Hill? Vote every last one out of office. No more of “Congress all suck except for my guy!” They ALL suck. I would like to ship Congress and all their relatives employed by the government ot Afghanistan or Iraq and give them twenty years to sort the mess out. Of course, that is a solution I suggest only because the DHS might rendition me for writing my real thoughts!

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